TMI Blog1957 (1) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ihar. Under the rules a permit for export is issued only after a person desirous of exporting goods deposits the export duty payable on the commodity sought to be exported in advance. The plaintiff deposited ₹ 10,990/14/- at Purnea in advance, as this was the amount of duty which would have been payable on 1870 maunds of mustard oil sought to be transported. The plaintiff then tried to get wagons for transport of oil but only two wagons could with difficulty be had and he was able to export only 513 maunds and 6 seers of mustard oil and after deducting the export duty on this amount of oil a sum of ₹ 8,182/12/- remained in deposit with the defendant-appellant. The plaintiff then sent letters to the officers of the Customs Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and as such the suit could not be instituted in Lucknow. As pointed out above, the nature of the claim will have to be examined -into in order to arrive at a correct finding on the plea of jurisdiction. 5. The facts of the case are practically admitted. The plaintiff was desirous of exporting 1870 maunds of mustard oil to East Pakistan and the deposit of ₹ 10990/14/- was made towards the payment of export duties on this oil. It is also admitted that only 513 maunds and six seers of oil could in fact be exported for reasons beyond the control of the plaintiff. Under the Indian Tariff Act read with the Land Customs Act and the Sea Customs Act an export duty be comes leviable when goods are exported. There can be no levy of duty on g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in this very Act (Sea, Customs Act) for refund of duty paid and it is Section 140. It runs as follows: "If any goods mentioned in a shipping bill or manifest be not shipped, or be shipped and afterwards relanded, the owner shall, before the expiration of five clear working days after the vessel on which such goods were intended to be shipped, or from which they were relanded, has left the port, give information of such short shipment or relanding to the Customs Collector. Upon an application being made to the Customs Collector, any duty levied upon goods not shipped, or upon goods shipped and afterwards relanded, shall be refunded to the person on whose behalf such duty was paid: Provided that no such refund shall be allowed unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will have, therefore, no application to applications for refund of deposits not actually appropriated towards levy of duly. Out of the amount deposited by the plaintiff only that amount will be appropriated which was equal to the amount of export duty which fell due on the goods actually exported. The rest of the amount, viz., ₹ 8.182/12/- remained unappropriated and the property in this amount vested in the plaintiff and it never became the property of the Government. The plaintiff was, therefore entitled to claim back the amount which was held by the defendant as a deposit. 6. This being the nature of the deposit, the question arises whether the plaintiff could institute a suit in Lucknow. In view of the circumstances under which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne. This case was hardly any application to the facts of the present case. We are. therefore, of opinion that suit of the nature which is before us could be instituted in the Court below. 7. The next point raised on behalf of the appellant was that the suit was barred by time, as the application for refund had not been made within three months as provided in Section 40 of the Sea Customs Act. As pointed out above, Section 40 of the Sea Customs Act has no application to the facts of the present case. No refund of any duty paid and appropriated is sought for on the ground of an erroneous payment or of payment due to misconstruction or inadvertence. The limit of time prescribed in Section 40 of the Sea Customs Act did not, therefore, apply to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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